Andrew Muray, et al. v. Karen Lantz, et al

Case Number

24CV03000

Case Type

Hearing Date / Time

Wed, 10/09/2024 - 10:00

Nature of Proceedings

Plaintiffs and Cross-Defendants Andrew Muray and Kerri Marshall’s Demurrer to Cross-Complaint and Motion to Strike Portions of the Cross-Complaint.

Tentative Ruling

For Plaintiffs and Cross-Defendants Andrew Muray and Kerri Marshall: Richard I. Wideman

For Defendants and Cross-Complainants Karen Lantz and Andrew Farkas: James B. Devine

                       

RULING

For the reasons set forth below:

1. Plaintiffs and cross-Defendants’ demurrer is overruled.

2. Plaintiffs and cross-Defendants’ motion to strike is denied in its entirety.

3. Cross-Defendants shall file and serve their answers to the cross-complaint no later than October 30, 2024.

Background

This action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs Andrew Muray and Kerri Marshall against Defendants Karen Lantz and Andrew Farkas. The complaint is for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession.

As alleged in the complaint:

Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property.

On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years.

Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the potions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants.

On July 5, 2024, Defendants filed a cross-complaint (“CC”) against Plaintiffs for: (1) trespass; (2) nuisance; and (3) declaratory relief.

As alleged in the cross-complaint:

Lantz was and is one of the trustees of the Kandyland Trust (the “Trust”). (CC, ¶ 1.) Farkas was and is one of the trustees of the Kandyland Trust. (CC, ¶ 2.) The Trust was and is the owner of 916 Roble Lane in Santa Barbara.

As a part of their acquisition of 916 Roble Lane, Lantz and Farkas intended to remodel the residence. (CC, ¶ 14.) Lantz and Farkas obtained permits from the City of Santa Barbara based on approved plans for the remodel. (Ibid.)

Beginning in December 2022, and over the course of several months, Muray conveyed to Lantz that Muray also wanted to complete a major renovation on his property, 922 Roble, which is adjacent to 916 Roble. (CC, ¶ 15.) Muray asked Lantz to come to Muray’s home office to look at architectural drawings and 3D modeling Murray had drawn for his own remodel. (Ibid.)

On January 8, 2023, Muray and Marshall, along with all other adjacent neighbors, were invited by Lantz and Farkas to 916 Roble where Lantz presented drawings pinned up in large format on the walls. (CC, ¶ 16.) The drawings included 3D color renderings and detailed floor plans representing an extensive renovation project. (Ibid.)

In September 2023, Muray asked Lantz if he could have a copy of Lantz and Farkas’ survey because Muray had a homemade measuring tool that allowed him to survey his own land and needed a starting point. (CC, ¶ 17.)

At some point in time, Muray began to email Lantz, without copying Marshall or Farkas, to ask for meetings at 922 Roble without either Marshall or Farkas being present. (CC, ¶ 18.) Lantz believed that Muray was trying to coordinate benefits of the parties’ mutual home improvements and to divide the cost of the work. (Ibid.) Muray’s behavior turned unprofessional with his repeated requests and push for meetings and to have a copy of Lantz and Farkas’ survey, which made Lantz feel uncomfortable. (Ibid.) Lantz emailed the surveyor, with Muray copied, and asked that a proposal be made to Muray for the scope of the work he desired. (Ibid.) Muray exhibited the same behavior with Lantz and Farkas’ drainage engineer. (Ibid.)

Muray began regularly emailing Lantz, without copying Marshall or Farkas, to let Muray know his travel schedule, as 922 Roble was used by Muray and Marshall for sporadic visits to Santa Barbara only. (CC, ¶ 19.) Muray again asked Lantz to look at his renovation work and wanted Lantz’s opinion about the design. (Ibid.)

In May 2023, Muray revealed to Lantz that Muray was unable to finance his renovation and would be offering 922 Roble for rent. (CC, ¶ 20.) When Lantz checked the rental listing for 922 Roble on Zillow, she saw that it was advertised as a “quiet oasis.” (Ibid.)

In October 2023, a couple who work from home decided to rent 922 Roble for the winter months of December 2023, through March 2024. (CC, ¶ 21.) The couple reached out to a mutual friend of Lantz and Farkas after Muray told the couple that Lantz and Farkas’ construction was minor and only involved stucco work. (Ibid.) The mutual fried advised Lantz that she told the couple that Lantz and Farkas’ permitted work was extensive and that it would likely be under construction for the entire time of the lease period. (CC, ¶ 22.) The mutual friend told Lantz and Farkas that the couple demanded a refund of their lease payment from Muray and cancelled the lease. (Ibid.)

In retaliation for the loss of the tenants, and Lantz’s rejection of Muray’s requests for private meetings without either Marshall or Farkas present, Muray began behaving aggressively toward Lantz. (CC, ¶ 23.)

During the renovation of 916 Roble, Lantz and Farkas became concerned that a dilapidated fence, that used to stand on a small four-inch strip of land between the two properties, was very close to the property line. (CC, ¶ 24.) Lantz and Farkas obtained a survey which showed that the fence, a portion of a deck attached to 922 Roble, and four-inch strip of land, were entirely within the 916 Roble property boundaries. (Ibid.) After receipt of the survey, Lantz researched city files to determine whether or not the fence had been permitted, and found that the city had issued a permit to the prior owners of 916 Roble, from whom Lantz and Farkas had purchased 916 Roble, and that the fence had been constructed entirely within the boundaries of 916 Roble. (CC, ¶ 26.)

On April 26, 2024, Lantz and Farkas directed their attorney to send a letter to Muray and Marshall requesting that they remove the encroaching deck, balcony, and utilities. (CC, ¶ 27.) On May 9, 2024, Marshall sent an email to counsel for Lantz and Farkas claiming that neither she nor Muray received the April 26th letter that was sent to 922 Roble because they do not visit 922 Roble often because of construction noise, the emailed version of the letter did not reach Muray because his name was misspelled, and Marshall was traveling out of state. (CC, ¶ 28.)

On May 22, 2024, permitted construction was taking place on 916 Roble, directly next to the fence, including removing the dirt adjacent to the fence and disputed area. (CC, ¶ 32.) When the grading was being done next to the fence, it became apparent that the fence had no footings. (Ibid.) Rather, it had four-inch posts every few feet that were placed directly into the ground with no concrete footings around the posts. (Ibid.) The fence posts were rotten and, as a result, removed because it posed a safety hazard to Lantz, Farkas, and their contractors. (Ibid.) During that process, no aspect of the footing of the deck attached to 922 Roble was disturbed. (Ibid.)

Muray and Marshall now demur to the CC and seek to strike certain portions of the CC. Lantz and Farkas oppose the demurrer and motion to strike.

Analysis

Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Muray and Marshall set forth the following grounds for their demurrer:

“1. The Cross-Complainants list themselves both ‘individually and as Trustees’ of something called ‘the Kandyland Trust;’ they are either but not both, and that renders the Cross-Complaint, and each and every cause of action thereof, uncertain and ambiguous; [“Ground No. 1”]

“2. In paragraph 4 thereof, only Lantz and Farkas are listed as Cross-Complainants, not the Trust, which is alleged to be the owner of the property at issue in par 3 of the Cross-Complaint; rendering the claims in the Cross-Complaint moot and beyond the jurisdiction of this Court since Lantz and Farkas are not the owners of the subject property (916 Roble); [“Ground No. 2”]

“3. In par 13, Cross-Complainants (defined to be Farkas and Lantz, but not the Trust), claim to have acquired 916 Roble property, rendering the Cross-Complaint uncertain and ambiguous and confusing; [“Ground No. 3”]

“4. The entire alleged First Cause of Action shows that, as a matter of law, the alleged ‘trespass” was, in fact, an area adversely possessed by Cross-Defendants’ predecessors; [“Ground No. 4”]

“5. The claim for ‘permanent injunction’ in par. 44 does not meet the statutory requirements for an injunction in that it omits any claim of insufficiency of legal remedy and omits the fact that, in a tortious act, Cross-Defendants actually removed said encroachments, and each of them, without legal authority and tortiously. [“Ground No. 5”]

“6. The claim for ‘permanent injunction’ in par 54 does not meet the statutory requirement for an injunction in that there is no pleading of the insufficiency of any legal remedy. [“Ground No. 6”]

“7. The Third Cause of Action is merely a restatement of the claims in the Complaint and asks for no relief that will not be afforded by the determination of the Complaint, [“Ground No. 7”] and

“8. The Request of a jury trial is not appropriate as this is a quiet title action.” [“Ground No. 8”] (Motion and Demurrer, p. 3, ll. 2-24.)

As pointed out by Lantz and Farkas, Muray and Marshall have filed the demurrer and motion to strike as a single document. While it is preferrable that a demurrer and motion to strike be filed as separate documents, it is not fatal to either the demurrer or motion to strike that they were filed as a single document.

The points and authorities, however, convolute the demurrer with the motion to strike. In most instances it is extremely unclear which argument pertains to which ground for demurrer, or which ground for the motion to strike. Some of the grounds are simply not addressed at all. In other instances, it is only the merits of the case that are argued rather than defects that appear on the face of the CC.

Further: “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60.) “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320(a).) The demurrer does not comply with this rule as to Ground Nos. 2, 3, 5, 6, or 8. Muray and Marshall fail to state whether each of those “grounds” apply to the entire CC or to specified causes of action.

“A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113(a).)

“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(a).)

Muray and Marshall fail to include any substantive argument in their points and authorities that directly address Ground Nos. 1, 2, 3, 4, and 7. As such, they have waived those grounds for demurrer. The court notes that even had there been cogent arguments presented as to those Grounds, the demurrer on those grounds would have been overruled. The allegations of the CC are not uncertain and ambiguous, nor do they fail to state facts sufficient to constitute causes of action.

“ ‘[U]ncertain’ ” includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“Demurrers for uncertainty . . . are disfavored. . . . A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the Defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Further: “A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.) The demurrer filed by Muray and Marshall does not dispose of any of the three causes of action contained in the CC.

Ground No. 4, which purports to dispose of the first cause of action, is not based on any statutory authority for bringing a demurrer. It is an argument as to the merits of the trespass claim and does not disclose any defect on the face of the CC. The second cause of action, for nuisance, is not addressed at all except with regard to paragraph 54 of the CC, seeking a permanent injunction, and that argument does not dispose of the entire cause of action. Ground No. 7, which purports to dispose of the third cause of action, is again not based on any statutory authority for bringing a demurrer.

The demurrer will be overruled.

Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Muray and Marshall move to strike paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 28, 29, 30, and 31 of the CC, on the grounds that each of the allegations contained therein consists of irrelevant, false, or improper evidentiary matter. They also move to strike the entire CC on the ground that it raises no issues that will not be determined by the trial on their complaint.

Muray and Marshall’s first, and primary, argument is that the subject paragraphs should be stricken because they consist of “evidentiary matter” rather than statements of fact. Their argument is wholly without merit.

The subject paragraphs contain alleged facts that provide Muray and Marshall with the basis of the CC. A cross-complaint shall contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).) The CC does just that.

For example, paragraph 15 states: “Over several months beginning in December of 2022, MURAY revealed to LANTZ that he too desired to complete a major renovation on 922 Roble, which is adjacent to 916 Roble, and asked LANTZ to look at his drawings. MURAY told LANTZ he wanted LANTZ, and not FARKAS, to come to MURAY’S home office to look at the architectural drawings and 3D modeling MURAY drew for his own remodel.”

The statements contained in paragraph 15 are simply alleged facts that are necessary for an understanding of the claims being made by way of the CC. They are not improper evidentiary matters. The court has reviewed all of the other paragraphs that Muray and Marshall move to strike and find that none of them are improper, objectionable, or subject to a motion to strike.

Of note is that Muray and Marshall did not include paragraphs 44 and 54 in their motion to strike (regarding injunctions), nor did they include the request for a jury trial. As such, any request to strike those paragraphs will be denied as well. Even if they had been included in the notice of motion to strike, the motion to strike them would have been denied on substantive grounds.